As Immigration Reform Stalls in Congress, Activists Take a Page from the Civil-Rights Movement

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As Immigration Reform Stalls in Congress, Activists Take a Page from the Civil-Rights Movement

October 17, 2013

Policy Beat

By Muzaffar Chishti and Faye Hipsman

Representatives Luis Gutiérrez (D-IL) and John Lewis (D-GA) were among the eight congressmen arrested for civil disobedience during the Camino Americano: Concert and March for Immigrant Dignity and Respect took place in Washington on October 8. (Photo courtesy of the National Immigrant Youth Alliance)

While national attention was focused on the federal government shutdown and the imminent threat of a default, thousands of activists last week in Washington, DC and across the country were engaged in civil disobedience and other mobilization tactics as part of an ongoing movement to ratchet up pressure on lawmakers to enact immigration reform legislation that has stalled in Congress. On October 8, 200 activists — including eight congressmen — were arrested when they engaged in civil disobedience by obstructing traffic near the Capitol during the Camino Americano Concert and March for Immigrant Dignity and Respect. The march attracted thousands of supporters. Three days earlier, immigrant, faith-based, labor, and civil-rights groups also organized a National Day of Action during which rallies, marches, vigils, and other mobilization actions occurred in 150 cities and towns in 40 states.

In anticipation of the demonstrations, the House Democratic leadership on October 2 introduced a new, far-reaching immigration bill that combines most of the legislation passed in the Senate last June (the Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744) with the Border Security Results Act, a bill that had been unanimously cleared by the House Homeland Security Committee in May. Although it is unlikely that the bill will come up for a vote, the move was designed to respond to activists' demand to put pressure on House Republicans to act on immigration reform by pressing a proposal to support.

The recent activism — seen as part of a new escalation in the more than decade-long immigration reform movement — suggests a departure from a political strategy that rests principally on Washington-centric lobbying efforts. It reflects a steady shift toward a broader-based grassroots strategy that draws its inspiration from the civil-rights movement of the 1960s which relied heavily on mass demonstrations, sit-ins, and vigils to gain national attention and deepen support for a moral cause. Civil disobedience — where participants peacefully court arrest by blocking traffic or occupying public spaces — is a central piece of such a strategy.

Like in the 1960s, the civil disobedience tactics of the immigration movement, which have included unauthorized immigrants turning themselves in to immigration authorities, have implications for the unfolding political and legislative debate. They have certainly brought more visibility to the cause, energized the drive for reform, and broadened the base of supporters to now encompass trade unions, faith-based organizations, immigrant-rights activists, and others.

But there is also a growing sense of a power shift within the movement. Strategy decisions are no longer confined to a small circle of national leaders. Instead, diverse groups from all over the country are shaping the direction of this new phase of the immigration reform movement. As a result, previously familiar, coordinated dynamics of lobbying on Capitol Hill may be evolving into a widening social movement. Some reform proponents fear that the grassroots measures could go one step too far and upset carefully crafted bargains that have been or might be negotiated among lawmakers.

Immigration Reform Activism Heats Up

While some immigrant-rights groups — especially members of unauthorized youth organizations — have engaged in civil disobedience for several years, the mainstream reform movement began to adopt this tactic during the congressional summer recess. Frustrated that momentum for legislation had stalled since the Senate passed its sweeping immigration reform bill in June, roughly 40 leaders and activists from a diverse set of groups were arrested at a sit-in staged on Capitol Hill on August 1. More activists were arrested later that day when they held sit-ins inside the offices of a handful of GOP leaders.

Throughout August, immigrant activists continued to hold meetings and rallies in order to pressure lawmakers in their home districts, some of which also resulted in arrests. The Arizona Dream Act Coalition received particular attention on August 22. Four of its members were arrested after locking and chaining themselves to a gate outside an Immigration and Customs Enforcement (ICE) detention facility, and two more were arrested after blocking a bus transporting unauthorized immigrants for deportation.

When members of Congress returned to Washington in early September, advocacy organizations continued to pepper them with protests. On September 12, more than 100 immigrant activist women, 20 of whom are unauthorized, were arrested after they blocked a traffic intersection on Capitol Hill. On September 18, seven unauthorized immigrants were arrested when they chained themselves to the White House fence in protest of the Obama administration's deportation policies. And on September 20, dozens of others — unauthorized mothers of the so-called DREAMers — protested outside the office of Speaker John Boehner (R-OH), resulting in four more arrests.

Parallel to the civil disobedience efforts, immigrant youth activists have engaged in a different sort of protest at the U.S.-Mexico border. In September, a group of immigrant-rights activists known as the "Dream 9," all U.S.-raised Mexican nationals who returned to Mexico — either voluntarily or through deportation — sought to re-enter the United States at the Nogales, Arizona port of entry by applying for political asylum. From the detention center where they were held for several weeks, the group staged a hunger strike, captured news headlines, and received a groundswell of support. On September 30, a larger group of unauthorized immigrants, called the "Dream 30" followed suit. These DREAM activists state that their purpose is to bring fresh scrutiny to the hardships caused by deportations and the need for reform to prevent them. The Dream 9 activists and some of the Dream 30 have been released from detention.

Going in the Right Direction or Going Too Far?

While the Dream 9 and 30 succeeded in calling attention to the federal government's detention and deportation policies, the boldness of their tactics — often characterized as militant — have sparked controversy among national political players in Washington, who are assessing whether such actions help or harm the prospects for immigration reform. Some members of Washington's immigration reform community criticized the Dream 9 for going too far, thereby upsetting delicate negotiations and creating a publicity stunt that, on a practical level, did nothing to move immigration reform forward in Congress. Rep. Luis Gutiérrez (D-IL), a critical House leader on immigration, stated that while he did "not agree with the Dream 9's tactics, [he] believe[s] that they — like all those deported without criminal records — should be able to return to their homes and their families in the United States." In the end, roughly 35 members of Congress called upon the Obama administration to release the Dream 9 from ICE detention.

Amidst these criticisms, many observers underscore the results of civil disobedience actions. For example, the Deferred Action for Childhood Departures (DACA) initiative, announced by President Obama in June 2012, was partially the outcome of pressure — created through various forms of civil disobedience — from immigrant youth groups. While their activism was initially met with skepticism, as of September, over a half million young unauthorized immigrants have received protection from deportation and work authorization under DACA.

Moreover, renewed public attention on the federal government's immigration enforcement practices has also drawn a response from states and local governments. During the first week of October, California Governor Jerry Brown signed into law an unprecedented series of nine different bills aimed at expanding benefits and protections to immigrants. Two are considered breakthrough measures: One would allow unauthorized immigrants to obtain driver's licenses (bringing to 11 the number of states with such policies), and the other bars law enforcement officials from fully complying with the federal immigration enforcement program, Secure Communities, that enables screening the immigration histories of individuals who are arrested. In recent months, a wave of cities — including San Francisco, New Orleans, and Newark — have also passed laws and ordinances that limit cooperation of local governments in federal immigration enforcement efforts.

GOP Discord over Immigration Reform

Several key Republicans, including Rep. Robert Goodlatte (R-VA), chairman of the House Judiciary Committee and a key immigration negotiator, have stated that they hope to address immigration reform after issues of the budget and debt ceiling are resolved. Five individual bills that address different facets of the immigration system have been approved in their respective committees. However, they have not been advanced to the House floor. President Obama stated that once the budget crisis is resolved, he will push for a vote on immigration reform in the House, and has called for progress in his first remarks since the shutdown ended.

If and how legislation moves forward, however, remains unclear. Speaker Boehner has reiterated for several months that he will only bring legislation to the floor that carries the support of the majority of the Republican caucus. But caucus members are divided on immigration. Most House Republicans have rejected the Senate-passed bill outright. But there is wide variance in the specific proposals they do endorse. In particular, they oppose any legislation that would legalize the status of the unauthorized — the cornerstone of any immigration reform that advocates and nearly all Democratic members are seeking.

New Data on Immigrants from Pew Hispanic Trends Project and Census Bureau Suggest Possible Rise in Foreign-Born Population and Unauthorized Immigrant Population. Approximately 11.7 million unauthorized immigrants were living in the United States as of March 2012, according to a new study by the Pew Research Center. The number represents an increase from the 2011 estimate of 11.5 million, and suggests that the sharp decline in the unauthorized population that accompanied the 2007-09 recession has bottomed out and their numbers may again be rising. The report states that although indicators point to increasing illegal immigration, the difference between the March 2012 and 2009 estimate (11.3 million) is not statistically significant. Results from the Census Bureau's 2012 American Community Survey (ACS), also recently released, indicate that the foreign-born population of the country is 40.8 million, up from 40.4 million in 2011.

Congress Extends Iraqi Visa Program for Three Months. Congress on October 2 approved a three-month extension for a program that provides Special Immigrant Visas (SIVs) to Iraqis who served in the U.S. military as translators or interpreters in Iraq, and President Obama is expected to sign the legislation. Iraqis' eligibility for the program is set to expire on January 1, 2014. Afghan nationals are also eligible under the program, but their eligibility does not expire until September 2014. The program provides up to 50 visas annually to Iraqi or Afghan nationals who worked directly with the U.S. Armed Forces or Chief of Mission (COM) for at least 12 months and obtained a specific written recommendation. There are two unrelated programs that authorize SIVs for certain Iraqi and Afghan nationals who have worked for or on behalf of the U.S. government in Iraq or Afghanistan, although some translators and interpreters may qualify under both programs.

2015 Diversity Visa Registration Begins. Online registration for the Diversity Visa 2015 Program (DV-2015) began on October 1. The program, often referred to as the green card lottery, was established by the Immigration Act of 1990 and makes available up to 55,000 diversity visas annually. Diversity Visa recipients are drawn randomly from all applications by noncitizens who come from countries with low rates of immigration to the United States during the preceding five years, and meet certain educational or work experience requirements. Registration will end on November 2.

Customs and Border Patrol Announces New Use of Force Policies. On September 25, U.S. Customs and Border Protection (CBP) announced a new initiative to improve the Border Patrol's practices when it uses deadly force, including a pilot program requiring officers' to wear a camera and/or install one on their vehicles. The effort follows a set of three reviews of the use of force by CBP — one internal, one external, and one by the Inspector General — that made a combined 90 recommendations to the agency. CBP has committed to: 1) improve review and analysis of use-of-force incidents; 2) identify additional or alternative weapons and equipment to improve agents' ability to de-escalate confrontations; 3) review and improve use-of-force training; and 4) establish stakeholder engagement. Immigration and civil-rights groups — who have long criticized the Border Patrol over incidents in which agents use deadly force against individuals they encounter along the U.S.-Mexico border — have said the initiative is an important step but does not go far enough. However, critics of some of the new measures, including the Border Patrol union, say that agents will be more hesitant to defend themselves and will face increased risk because of the measures. According to the American Civil Liberties Union (ACLU), use-of-force incidents have resulted in at least 19 deaths along southern and northers U.S. borders since 2010.

Federal Courts Strike Down Immigration Enforcement Practices in Arizona. On September 2, the U.S. Court of Appeals for the Ninth Circuit unanimously struck down the procedure of taking pleas en masse during the immigration prosecution program Operation Streamline. The ruling held that judges are permitted to advise groups of defendants of their rights, but that asking defendants en masse whether they understand their rights and the consequences of their pleas does not meet legal standards of advisement. Prior to the ruling, it was common practice for judges to question defendants in groups of five. Through Operation Streamline, launched in 2005, unauthorized border-crossers are criminally prosecuted for immigration crimes, such as illegal entry or illegal re-entry, prior to being placed in removal proceedings. On September 27, the U.S. District Court for the District of Arizona issued an order directing the Maricopa County Sheriff's Office (MCSO) — headed by Sheriff Joe Arpaio, known for his tough stance on immigration enforcement — to immediately stop its controversial policy of prosecuting unauthorized migrants who paid to be smuggled across the U.S.-Mexico border as co-conspirators to the crime. Under a a 2005 Arizona law that established human smuggling and human trafficking as felonies, MCSO began arresting, detaining, and prosecuting unauthorized immigrants for conspiring to smuggle themselves. The court ruled that the policy is preempted by federal law and that MCSO and the Maricopa County Attorney's Office are permanently enjoined from its further use. The county is reportedly considering an appeal.

California Passes Slew of Immigration Laws. California passed a series of laws in early October expanding benefits and protections to immigrants. Two among them — the Trust Act (AB 4) and the Assembly Bill (AB 60) — are considered to be milestone bills.

Under the Trust Act, law enforcement officials are prohibited from detaining an individual on the basis of an Immigration and Customs Enforcement (ICE) immigration detainer beyond the time that he or she becomes eligible for release, unless the person has been convicted of certain serious crimes. ICE issues immigration detainers to request that federal, state, and local law enforcement agencies hold a person whom ICE intends to assume custody of.

AB 60 requires the California Department of Motor Vehicles (DMV) to issue a driver's license without regard to a person's immigration status, as long as he or she can prove identity, California residency, and can meet all other licensing requirements and tests. Other enacted bills provide for the following:

AB 35 stipulates that only certain Board of Immigration Appeals (BIA) accredited individuals are authorized to charge a fee for assisting DACA applicants.

AB 1024 allows unauthorized immigrants to be admitted to the California bar.

SB 141 extends eligibility for in-state tuition to certain California-raised U.S. citizens living abroad because of the deportation or voluntary departure of a parent.

SB 666 makes retaliation against employees on the basis of immigration status punishable by suspension or revocation of an employer's business license, and establishes a civil penalty of up to $10,000 per violation.

AB 524 provides that threatening to report a person's immigration status may result in inducement of fear sufficient to constitute extortion.

Gov. Jerry Brown vetoed a bill on October 7 that would have permitted noncitizens to serve on juries. Upon signing many of these bills into law on October 5, Gov. Brown stated, "While Washington waffles on immigration, California's forging ahead, I'm not waiting." Supporters of his actions celebrated, saying the laws will usher in a new era for California's immigrant communities and serve as a model for other states. Critics say the new laws will provide incentive to unauthorized migrants to move to California.

Massachusetts Court Expands Padilla. On September 13, the Massachusetts State Supreme Judicial Court (SJC) ruled that a March 2010 U.S. Supreme Court decision, Padilla v. Kentucky, is retroactive for convictions that occurred after April 1, 1997 as a matter of state law. Padilla held that sixth amendment rights are violated if a defense attorney fails to accurately advise noncitizen clients of the immigration consequences of a guilty plea. In February 2013, the U.S. Supreme Court held in a post-Padilla case, Chaidez v. United States, that the ruling cannot be applied retroactively to individuals who were criminally convicted before Padilla was decided. Notwithstanding the U.S. Supreme Court's actions, the SJC found that Padilla is retroactive under Massachusetts common law and separately under the Massachusetts Declaration of Rights.

Arizona State Officials Deny Drivers Licenses to Anyone with Deferred Action. Arizona on September 17 announced that its year-old restriction on granting drivers' licenses and identification cards to beneficiaries of the DACA program will now extend to anyone who has been granted Deferred Action or Deferred Enforced Departure. After Arizona implemented its initial order barring DACA recipients from driver's licenses on August 15, 2012, the state continued to issue licenses to individuals who had received general deferred action from the Department of Homeland Security. Several groups filed a lawsuit in November 2012 accusing Gov. Jan Brewer of discriminating against DACA beneficiaries and violating US constitutional rights to equal protection. The new policy change was announced in pleadings filed in U.S. District Court in Phoenix in connection with the lawsuit. According to Arizona officials, the restrictions are appropriate because individuals with Deferred Action and Deferred Enforced Departure "cannot demonstrate authorized presence under federal law."

New San Francisco Ordinance Bucks Detainer Requests. On September 27, the San Francisco Board of Supervisors unanimously passed the Due Process for All ordinance, which limits law enforcement agencies' latitude to cooperate with the federal government's Secure Communities program. Under Secure Communities, the fingerprints of all arrestees are automatically checked against federal immigration databases, and ICE may request that an agency continue detaining an individual until he or she can be transferred into the custody of immigration officials. The new ordinance prohibits authorities from holding an individual in custody based solely on immigration status, unless the individual has a prior conviction for the crimes of murder, sexual assault, trafficking, or assault with a deadly weapon.